As the Supreme Court has grown more politicized in the last century, contentious confirmation hearings have increasingly become the norm for Supreme Court nominations. As a result, calls for term limits on its members have emerged in recent decades. While the dysfunction within the confirmation process should certainly raise concerns, ending life tenure for the justices won’t solve this problem or stop the politicization of the Supreme Court.
Before Justice Anthony Kennedy’s retirement, conservatives had called for term limits on its members as the High Court delivered decisions that were unfavorable toward their preferred results. Since Kennedy’s replacement, calls for judicial term limits began to increase among those on the left, who now fear that the court will render unfavorable or more conservative decisions.
A left-leaning interest group called “Fix The Court ” has helped lead the charge for term limits. The group faults lifetime appointments for contentious confirmation hearings, such as the one Justice Brett Kavanaugh endured last fall.
Despite our Constitution’s allowance of life tenure for justices since its inception, Supreme Court nominations did not receive the level of scrutiny experienced today until President Woodrow Wilson’s 1916 nomination of Louis Brandeis in 1916, who became the first to undergo an actual Senate confirmation hearing due to his more progressive views of the law.
Supporters of term limits argue that life tenure turned the nation’s highest court into a partisan political body, and that removing life tenure would allow the Court to stay above the political fray. Some claim that a lifetime appointment incentivizes a justice to remain on the bench until the election of a new president who shares that justice’s political views. Those in favor of term-limiting the court claim that as a result, a justice can continue inserting his political agenda into law by ensuring that whoever replaces him will continue this insertion even after he retires.
By focusing on ending this pattern, however, supporters of judicial term limits from both sides of the political aisle do nothing to address the primary problem behind the Supreme Court’s politicization. In addressing this problem at the raucous Kavanaugh confirmation hearings, Senator Ben Sasse, R-Neb., rightly synthesized the problem for what it is: Congress’ continual delineation of power to the executive branch and its bureaucrats.
Article I of the Constitution says “all legislative Powers herein granted shall be vested in a Congress of the United States,” it is Congress that should be the center of national politics, not the Supreme Court. After all, Congress, as a body consisting of the people’s elected representatives and senators, is the branch that is closest to the people.
Under our nation’s republican form of government, it is the people, not judges or administrative technocrats, who have the ultimate say on what our laws should be. Hence, it made sense to our founders that Congress be not only the most powerful branch, but also the branch that holds legislative power. Yet, Congress continues to delegate more of its law-making power to executive agencies and the judiciary, both of which are less accountable to the people. As a result, more of the laws that affect our daily lives and country as a whole originate, not from our elected members of Congress, but from executive agency bureaucrats.
As Sasse further pointed out at the hearing, it’s no wonder why so many Americans feel disenfranchised. Many of the political decisions that affect us come not from their elected lawmakers, but rather from the executive and judicial branches.
Decades of progressive legislation have given bureaucrats massive leeway in interpreting statutes and policymaking. These unelected officials make new policies as a result, and the people cannot rely on their congressmen or senators to repeal them. The American people have no other choice but to sue to overturn those policies, developing into cases that eventually embroil the Supreme Court.
One such highly politicized case was decided by the High Court this past summer, in which the Department of Commerce attempted to place a citizenship question into the 2020 Census. Though Clause 3 of Article I, Sec. 2 of the Constitution gives Congress the power to decide the method of how the census is to be conducted, Congress delegated authority to the Commerce Department. Had Congress retained that authority, opponents of the citizenship question would then not have to rely on the courts to have that policy overturned.
It is evident the Court faces difficulty functioning independently since many people have become reliant on litigation rather than the next election to solve the big political questions of the day.
In trying to fix the Supreme Court with term limits, supporters do nothing to shift politics away from the judiciary. They fail to fix the real problem: a Congress that gives up too much of its lawmaking authority. They instead fall into the deadly trap of making their politics dependent upon unelected judges. To quote Justice Ruth Bader Ginsburg, it is Congress that is the “obvious culprit,” not the courts.
If Americans want to defuse the partisan environment surrounding the Supreme Court, they must convince Congress to reclaim its legislative authority. As Sasse further put it, “people shouldn’t… be protesting in front of the Supreme Court. They should protesting in front of this body [Congress].”
This is not to discount the need for appointing and confirming the right people to the bench. The judiciary certainly needs jurists who have reverence for the law and respect for our Constitution so that it would not insert itself too much into the political fray. The Trump administration so far has done a great job on appointing those types of jurists such as Justices Gorsuch and Kavanaugh.
However, Americans also need to take up the burden of fixing Congress. Simply term-limiting the Supreme Court won’t give legislative authority back to Congress. If we cannot get our elected members of Congress to take back their legislative authority and use it to solve our problems, then we have truly shown that we cannot govern ourselves, and as a result, we will have delegated away our nation’s character as a republic.